01a44745
03-08-2006
Richard L. Miller, Complainant, v. Ellen Engleman Conners, Chairman, National Transportation Safety Board, Agency.
Richard L. Miller v. National Transportation Safety Board
01A44745
March 8, 2006
.
Richard L. Miller,
Complainant,
v.
Ellen Engleman Conners,
Chairman,
National Transportation Safety Board,
Agency.
Appeal No. 01A44745
Agency No. 100-AO-2011
Hearing No. 100-2003-0789X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Financial Management Specialist,
GS-14, assigned to the Office of the Chief Financial Officer, located
in Washington, D.C., filed a formal EEO complaint on March 13, 2002,
alleging that the agency discriminated against him on the bases of sex
(male) and age (D.O.B: 03-24-1949) when:
from April 6, 2000 to September 12, 2001, he was not selected for
five different positions that were advertised on the following vacancy
announcements:
a. WA-TB-029
b. WA01-010
c. WA-TB-1-007
d. WA-TB-1-055
e. WA-TB-1-110
he did not receive a classified position description that describes
the duties of his current position;
in January 2002, he received a performance evaluation of �Excellent�
rather than �Outstanding� for the rating period that ended May 30,
2001; and
he was denied use of office equipment, such as cell phone, laptop,
etc.,
On April 24, 2002, the agency issued a partial dismissal. The agency
accepted for investigation claims (1), (2), and (3). The agency
dismissed claim (4) pursuant to 29 C.F.R. � 1614.107 (a)(2) on the
grounds that the claim was not raised with an EEO Counselor and that
it was not like or related to a matter for which complainant underwent
EEO counseling.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On February 18, 2004, the AJ issued an �Order Defining Claims to be
Adjudicated� affirming the agency's procedural dismissal of claim
(4). In this same order, the AJ also essentially dismissed claim (2)
for failure to state a claim, finding that the absence of an accurate
written position description, is insufficient to render complainant
aggrieved. The AJ further dismissed complainant's non-selections
under vacancy announcements: WA-TB-029; WA01-010; WA-TB-1-007; and
WA-TB-1-055, for untimely EEO Counselor contact. See 29 C.F.R. �
1614.107(a)(2). Specifically, the AJ found that the above non-selections
constitute discrete acts rather than a continuing violation, and that
complainant had an obligation to raise each of these non-selections with
an EEO Counselor within the 45-day time limit. The only non-selection
that remained to be adjudicated was the Operations Manager position that
was advertised under vacancy announcements WA-TB-1-110. The AJ requested
supplemental information on this non-selection, specifically, the AJ
wanted to know whether complainant timely raised this matter with an
EEO counselor. Finally, the AJ specified claim (3) to be adjudicated.
On April 6, 2004, the AJ issued a �Order of Partial Dismissal.� The AJ
dismissed complainant's non-selection claim for the position of Operations
Manager based on untimely EEO Counselor contact. Specifically, the
AJ found that complainant was informed of his non-selection in October
2001, and that the deadline for contacting the EEO Counselor expired in
December 2001. The AJ further found that complainant contacted an EEO
counselor in January 2002.<1>
The AJ issued a decision without a hearing on May 19, 2004, on the
remaining claim: whether the agency discriminated against complainant on
the bases of his sex (male) and age (D.O.B: 3/24/49) when in January 2002,
complainant received a performance evaluation of �Excellent� rather than
�Outstanding� for the rating period that ended May 30, 2001. The AJ
concluded that complainant failed to establish a prima facie case of sex
or age discrimination. Specifically, the AJ found that complainant failed
to demonstrate that similarly situated employees, who were either female
or significantly younger than complainant, received a higher performance
appraisal rating than complainant. The AJ also found that complainant
was the only non-supervisory, professional employee for whom complainant's
supervisor (S1) prepared an evaluation during the 2000/2001 rating period.
The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
Procedural Dismissals
Claim 1
We address first, the untimeliness of complainant's claims of
non-selection. The Supreme Court has held that discrete acts
such as hiring, firing and promotions, that fall outside of the
limitations period are not actionable and no recovery is available.
National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002).
Even if the discrete activity is arguably related to other discriminatory
acts that occur within the filing period, they are not actionable if
untimely raised. Id. See also, EEOC Compliance Manual 915.003 Section
2: Threshold Issues, Timeliness 2-IV (Issued May 12, 2000). However,
as the court recognized, Title VII does not bar an employee from using
the prior acts as background evidence in support of a timely claim.
Morgan, at 113.
Applying these principles, the Commission affirms the AJ's dismissal of
claim (1) for untimely EEO contact. More specifically, complainant's
claim of discrimination when he was not selected for several positions
concerns discrete acts. Under our regulations, complainant must initiate
EEO contact within 45 days of an alleged discriminatory act. 29 C.F.R. �
1614. 105(a)(1). In this case, complainant initially made contact with an
EEO counselor allegedly on January 2, 2002. The incidents that comprise
each non-selection occurred between April 2000 through October 2001,
when complainant became aware of his non-selection for the last position
for which he applied. Therefore, we find that these allegations were
properly dismissed by the AJ.
Claim (2)
We concur with the AJ's determination that complainant was not aggrieved
when he did not receive a position description until April 22, 2002.
We find no evidence in the record that complainant suffered a direct harm
affecting a term, condition or privilege of employment for which there
is a remedy. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Moreover, the record reveals that the
delay was caused by complainant's failure to cooperate in the process.
Specifically, the record shows that the process started in October 2001,
and that management went back and forth for months trying to get feedback
from complainant as to the information to be included in his position
description.
Claim 4
The regulation set forth at 29 C.F.R. � 1614. 107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim is "like or related" to the original
complaint if the later claim or complaint adds to or clarifies the
original complaint and could reasonably been expected to grow out of
the original complaint during the investigation. See Scher v. United
Postal Service, EEOC Request No. 05940702 (May 30, 1995). We find
no indication that complainant raised the denial of office equipment
claim with an EEO Counselor prior to the filing of his formal complaint.
Moreover, the denial of office equipment claim does not add to or clarify
the issues raised with the EEO Counselor. Therefore, we agree with the
AJ's decision affirming the agency's dismissal of claim (4).
Accordingly, we affirm the AJ's procedural dismissal of claims (1),
(2), and (4).
Decision Without a Hearing
Claim 3
The Commission's review of a decision without a hearing is de novo,
meaning that it is done without regard to the legal or factual conclusions
of the previous decision maker. EEOC Management Directive 110, Chapter 9
(Section VI) (Revised 1999). The Commission's regulations allow an AJ
to issue a decision without a hearing when he or she finds that there
is no genuine issue of material fact . 29 C.F.R. � 1614.109 (g). This
regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme
Court has held that summary judgment is only appropriate where a court
determines that, given the substantive legal and evidentiary standards
that apply to the case, there exist no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling
on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues
for trial. Id. at 249. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences must
be drawn in the non-moving party's favor. Id. at 255. An issue of fact
is �genuine� if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317,
322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). A fact is �material� if it has the potential to affect
the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, the issuance of a decision without a hearing
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination. He can do this by establishing that similarly
situated individuals outside of his protected classes were treated more
favorably than he was or by setting forth some other evidence from which
a reasonable fact-finder could draw an inference of discrimination.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Complainant failed to establish that any similarly situated employee
outside of his protected group was treated more favorably under similar
circumstances. Specifically, complainant failed to establish that either
females or younger employees, received higher performance appraisal
ratings than him. Further, he did not set forth any other evidence
from which we could draw an inference of discrimination. Accordingly,
we conclude that complainant has failed to establish a prima facie case
of sex or age discrimination.
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 8, 2006
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistan1Complainant alleged that he first contacted
an EEO Counselor on January 2, 2002, and the agency stated that the
contact was on January 14, 2002; however, the AJ determined that it is
irrelevant because even assuming that complainant contacted the EEO
Counselor as early as January 2, 2002, his contact did not meet the
regulatory 45-day time limit.